AHRQ Tribal Consultation Policy
Each Federal department must have a process to ensure meaningful and timely input by tribal officials in development of regulatory and other policies with substantial direct effects on one or more tribes, on the relationship between the Federal Government and tribes, or on distribution of power between the Federal Government and tribes.
Each agency in the Department of Health and Human Services must have a consultation plan; the plan of the Agency for Healthcare Research and Quality (AHRQ) follows.
The mission of the Agency for Healthcare Research and Quality (AHRQ) is to improve the quality, safety, efficiency, and effectiveness of health care for all Americans through support of health services research that develops and presents scientific evidence regarding all aspects of health care. Health services research addresses issues of "organization, delivery, financing, utilization, patient and provider behavior, quality, outcomes, effectiveness and cost. It evaluates both clinical services and the system in which these services are provided. It provides information about the cost of care, as well as its effectiveness, outcomes, efficiency, and quality. It includes studies of the structure, process, and effects of health services for individuals and populations. It addresses both basic and applied research questions, including fundamental aspects of both individual and system behavior and the application of interventions in practice settings." 1
While AHRQ is a "research agency," research is only a beginning and not an end in itself. On a daily basis, this means that the Agency works to ensure that providers use evidence-based research to deliver high-quality health care and to work with their patients as partners. Evidence helps patients to become better informed consumers and to be partners in their own care. This Agency also disseminates evidence to help local policymakers understand what they can do to improve the quality of health care for their constituents. To achieve these ends, research findings must be ready to use, widely available and actionable.
The Agency for Healthcare Research and Quality (AHRQ) shares with Indian Tribes the goal of reducing health disparities and ensuring that access to critical health services is maximized. To achieve these goals, and to the extent practicable and permitted by law, it is important that Federally-recognized Indian Tribes and AHRQ engage in open and meaningful consultation to identify Tribes' health services research needs and priorities. Effective consultation leads to information exchange, mutual understanding, and informed decisionmaking.
1 Eisenberg JM. Health Services Research in a Market-Oriented Health Care System. Health Affairs, Vol. 17, No. 1:98-108, 1998.
A unique government-to-government relationship exists between many AI/AN Indian Tribes (Federally-recognized tribes) and the Federal Government. This relationship is not based upon race. Rather, it is grounded in the Constitution and has been given form and substance by numerous treaties, statutes, Supreme Court decisions, and Executive Orders and reaffirms the right of Indian Tribes to self-government and self-determination. Indian Tribes exercise sovereign powers over their citizens and territory.
The government-to-government relationship is affirmed in but not limited to:
- Older Americans Act, P.L. 89-73, as amended.
- Indian Self-Determination and Education Assistance Act, P.L. 93-638, as amended.
- Native American Programs Act, P.L. 93-644, as amended.
- Indian Health Care Improvement Act, P.L. 94-437, as amended.
- Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L.104-193.
- Presidential Executive Memorandum to the Heads of Executive Departments dated April 29, 1994.
- Presidential Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, November 6, 2000; and
- Presidential Memorandum, Government-to-Government Relationship with Tribal Governments, September 23, 2004.
- Presidential Memorandum, Tribal Consultation, November 5, 2009.
- American Recovery and Reinvestment Act of 2009, P.L. 111-5, 123 Stat. 115 (Feb. 17, 2009).
- Children's Health Insurance Program Reauthorization Act of 2009, P.L. 111-3, 123 Stat. 8 (Feb. 4, 2009).
- Patient Protection and Affordable Care Act of 2010, P.L. 111-148, 124 Stat. 119 (Mar. 23, 2010).
An integral element of this government-to-government relationship is that consultation occurs with federally-recognized Indian Tribes in matters that significantly affect them. All divisions of the Department of Health and Human Services (HHS), including AHRQ, share in this responsibility.
3. Tribal Sovereignty
As stated above, Indian Tribes exercise sovereign powers over their citizens and territory. Increasingly, Indians have emphasized self-determination and meaningful involvement in Federal decisionmaking (consultation) where such decisions affect them. The involvement of Indian Tribes in the development of Federal public health and human services policy promotes locally relevant and culturally appropriate approaches to issues of mutual interest or concern.
This policy does not waive any Tribal Governmental rights and authority, including treaty rights, sovereign immunities or jurisdiction. Additionally, this policy does not diminish any rights or protections afforded other American Indians or Alaskan Natives (AI/AN) or entities under Federal law.
It is the policy of AHRQ that consultation with Federally-recognized Indian Tribes will occur to the extent practicable and permitted by law before action is taken by AHRQ that will or is likely to have a substantial direct impact on them. Such actions refer to policies that have Tribal implications and that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
Nothing in this policy waives AHRQ's deliberative process privilege. For example, in instances where AHRQ is specifically requested by Members of Congress to respond to or report on proposed legislation, the development of such responses and of related policy is a part of the Executive Branch's deliberative process and will remain confidential.
5. Tribal Consultation
Consultation occurs when the AHRQ Director/Deputy Director or their designee, and a Tribal President/Chair/Governor and/or elected/appointed Tribal Leader or their designee formally meet (in person or via teleconference) or exchange written correspondence to discuss issues concerning either party.
At times it is useful for AHRQ to communicate with and/or include multi-tribal Indian organizations in consultation efforts. These organizations represent the interests of Indian Tribes when authorized by those Tribes. These organizations serve and advocate on behalf of Indian Tribes.
Consultation shall occur on a regular basis and may occur on an "as needed" basis as well. Both AHRQ and the Tribes may raise issues that need to be addressed and can include discussions regarding funding opportunities and Funding Opportunity Announcements, if desired by the Tribes. The type and extent of consultation will vary and be guided by the particulars of the immediate situation.
Regularly Occurring Consultation
AHRQ will take advantage of national meetings sponsored by different units of the Department (usually the Office of the Secretary or one of its subunits) to engage Tribes in consultation regarding their research needs and priorities. Foremost, the Agency will take an active role in the work of the multi-agency AI/AN Tribal Health Research Advisory Council, managed by the Department's Office of Minority Health. The purposes of this group are to: obtain input from elected Tribal leaders on health research priorities and needs for their communities; provide a forum through which OPDIV and STAFFDIV representatives can better coordinate the Department's work on AI/AN health research; and provide a conduit for disseminating information to Tribes about research findings from studies focusing on the health of AI/AN populations.
The Agency will also take part in the Department's annual national Tribal budget consultations which occur in the spring of each year. In line with the revised Departmental tribal consultation policy, the AHRQ Director/Deputy Director and budget officer will attend the AHRQ-specific session and other sessions that significantly affect AHRQ.
"As Needed" Consultations
Both AHRQ and Tribes may raise issues that need to be addressed in a formal consultation setting. Tribal concerns should be addressed to the Director, AHRQ.
The nature and design of any consultation interaction will vary and be guided by the particulars of the immediate issues(s) and the larger situation, such as the potential number of tribes that could be affected, the complexity of the issues, and time constraints.
Different types of consultation include:
- Correspondence: When feasible, consultations can take place via written communication between elected Tribal leaders and the Director, AHRQ. Written communications from AHRQ should clearly identify the issues at hand, potentially affected Tribes, any Agency positions on the issues, the type of input sought, how to provide input, and when to provide input. HHS, including AHRQ, frequently uses a "Dear Tribal Leader Letter" format to undertake/notify Tribal leaders of consultation activities.
- Meeting(s): If a meeting is considered necessary, AHRQ will try to schedule it to correspond with another departmental meeting requesting attendance of Tribal leaders to minimize the burden on Tribal leaders. Notification to affected Tribal leaders will be made using all appropriate methods including mailing, broadcast e-mail, and other information dissemination outlets. AHRQ will send a minimum of two written notifications to tribes—one at least 45-60 days prior to the consultation and another 15-30 days prior to the consultation. Meetings could also be conducted via teleconference calls, to the extent appropriate and practical.
AHRQ may establish or participate in workgroups, task forces or other groups or committees with Indian Tribes and others to address issues affecting AIs/ANs. Membership on such groups including elected Tribal leaders or their designees may be considered part of AHRQ's consultation activities.
Other types of meetings and/or conferences occur in which tribal leaders/representatives and Agency leaders exchange information. While these may not be considered formal consultation sessions, they often provide opportunities for information sharing and providing technical assistance to Indian Tribes.
The Agency's consultation policy will be posted on the Agency's Web site and linked to the Departmental Tribal Consultation policy on the HHS Web site.
6. Tribal Consultation Reporting
AHRQ will report to involved Tribes and the Department on the outcomes of formal consultations.
As part of the Department's Annual Tribal Consultation Report and budget consultations, AHRQ will report on its consultation activities undertaken during the previous year, as well as on the results and outcomes of those activities. In addition, AHRQ will include an evaluation component in any large consultation activities it implements. More specifically, AHRQ will maintain a record of the consultation, evaluate whether the intended results were achieved, and report back to the affected Tribes on the status or outcomes.
7. Conflict Resolution
The intent of this policy is to increase consultations with Tribes on matters which have a substantial direct effect on them. If concerns on the part of Tribes arise, they may elevate them to a higher, separate decisionmaking authority. In this case, conflicts can be raised with the Deputy Secretary.
This policy does not create any rights to any particular consultation or a right of action against AHRQ for failure to comply with this policy. Agency activities are always subject to budgetary constraints.
8. Tribal Waiver
To the extent practicable and permitted by law, AHRQ will consider any application by a federally recognized Indian Tribe for a waiver of statutory, regulatory, policy, or procedural requirements with a general view toward increasing opportunities for utilizing flexible approaches at the Indian Tribal level when the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate. AHRQ shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 calendar days of receipt, or as otherwise provided by law or regulation. If the application for waiver is not granted, AHRQ shall provide the applicant with timely written notice of the decision and the reasons therefore. Waiver requests for statutory or regulatory requirements apply only to statutory or regulatory requirements that are discretionary and subject to waiver by AHRQ.
9. Effective Date
This policy is effective on the date of the signature by the Director, AHRQ and supersedes previous Agency Tribal Consultation policies.
- Communication—The exchange of ideas, messages, or information, by speech, writing, or other means.
- Consultation—An enhanced form of communication, which emphasizes trust, respect and shared responsibility. It is an open and free exchange of information and opinion among parties, which leads to mutual understanding. Consultation is integral to a deliberative process, which results in effective collaboration and informed decision making with the ultimate goal of reaching consensus on issues.
- Deliberative Process Privilege—A privilege exempting the government form disclosure of government agency materials containing opinions, recommendations, and other communications that are part of the decisionmaking process within the agency.
- Executive Order—An order issued by the President on the basis of authority specifically granted to the executive branch (by the U.S. Constitution or a Congressional Act).
- Indian—Indian means a person who is a member of an Indian tribe as defined in 25 U.S.C. 479a. Throughout this policy, Indian is synonymous with American Indian/Alaska Native.
- Indian Organizations: 1) Those federally recognized tribally constituted entities that have been designated by their governing body to facilitate communications and consultation activities with entities of the Federal Government. 2) Any regional or national organizations whose board is comprised of federally recognized Tribes and elected/appointed Tribal leaders. The Federal Government does not participate in government-to-government consultation with these entities. Rather, these organizations represent the interests of Tribes when authorized by those Tribes.
- Indian Tribe—An Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
- Joint Tribal/Federal Workgroups and or/Task Forces—A group composed of individuals who are elected Tribal officials, appointed by federally recognized Tribal governments and Federal agencies to represent their interests while working on a particular policy, practice, issue and/or concern.
- Policies that have Tribal Implications—Refers to regulations, legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
- Self Government—Government in which the people who are most directly affected by the decisions make decisions.
- Sovereignty—The recognized official source of political power from which specific political powers are derived.
- To the Extent Practicable and Permitted by Law—Refers to situations where the opportunity for consultation is possible despite constraints of time, budget, legal authority, etc.
- Treaty—A legally binding and written agreement that affirms the government-to-government relationship between two or more nations.
- Tribal Government—An American Indian or Alaska Native Tribe, Band, Nation, Pueblo, Village or Community that the Secretary of the Interior acknowledges to exist as an Indian Tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 USC 479a.
- Tribal Officials—Elected or duly appointed officials of Indian Tribes or of authorized inter-Tribal organizations.
- Tribal Organization—The recognized governing body of any Indian Tribe; any legally established organization of American Indians and Alaska Natives which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the community to be served by such organization and which includes the maximum participation of Indian Tribal members in all phases of its activities (25 U.S.C. 450b).
- Tribal Resolution—A formal expression of the opinion or will of an official Tribal governing body which is adopted by vote of the Tribal governing body.
- Tribal Self-Governance—The governmental actions of Tribes exercising self-government and self-determination.
Cecilia Rivera Casale, PhD, Senior Advisor for Minority Health
/Carolyn M. Clancy/
Carolyn M. Clancy